Sloss on Medellin

by David Sloss

[Opinio Juris has requested David Sloss’ permission to post this email he published on a international law list serve and he has kindly obliged]

I finally was able to read the Texas court’s decision in Medellin. It strikes me that the court almost completely ignored the strongest argument in favor of the petitioner. That argument can be summarized as follows.

The United States has an obligation under Article 94 of the U.N. Charter to “comply with the decision of the International Court of Justice” in the Avena case. Under the express terms of the Constitution, Article 94 is the “supreme Law of the Land,” and “judges in every state shall be bound thereby.” Therefore, the Texas Court of Criminal Appeals has a constitutional duty to comply with the ICJ decision in Avena. Note that it is immaterial, for purposes of this argument, whether the Avena judgment is supreme federal law. I would maintain that the Avena judgment is not supreme federal law. Even so, by virtue of Article 94 and the Supremacy Clause, the Texas court still had a constitutional duty to comply with the ICJ decision.

No doubt, some will argue either that Article 94 is “not self-executing,” or that Article 94 does not create “individually enforceable rights,” or both. But that argument merely serves to obfuscate the main issue. The claim that Article 94 is “not self-executing” is utterly meaningless, unless one defines the term. Moreover, whatever it means to say that Article 94 is “not self-executing,” it is beyond dispute that Article 94 is the “supreme Law of the Land,” and that “judges in every state are bound thereby” because the Constitution says so. Of course, this does not mean that Article 94 is judicially enforceable in every case. Rather, Article 94 is judicially enforceable only in those cases where it provides an applicable rule of decision. The number of cases litigated in U.S. courts where Article 94 does provide an applicable rule of decision is very, very small, but it’s not zero. Medellin is one of the few cases where Article 94 does provide an applicable rule of decision. In my view the Texas court’s decision violated both Article 94 and the Supremacy Clause.

5 Responses

As it happens, I have posted about a related issue at my own blog when Sanchez-Llamas was decided.

In short, my argument was – and, subject to the facts of the case, remains – that Article 94(1) of the Charter has some significance even outside the 50 or so cases that have been personally brought before the ICJ by Mexico. (I do not, incidentally, express an opinion on Professor Sloss’s opinion on the status of Article 94 in US law)

The ICJ said in Avena, as it had said before in LaGrand, ‘that should nationals of the [respective applicant State] nonetheless be sentenced to severe penalties, without their rights under Article 36, paragraph 1 (b), of the Convention having been respected, the United States of America, by means of its own choosing, shall allow the review and reconsideration of the conviction and sentence by taking account of the violation of the rights set forth in that Convention.’

This is a ruling in the operative part of the judgment, and hence binding upon the US. It is true, of course, that the judgment of the Court only has binding force ‘in respect of the particular case’ (Article 59 of the Statute), but this limit is not breached by the Court’s demands relating to future cases (see Rudolf Bernhardt, in Andreas Zimmermann / Christian Tomuschat / Karin Oellers-Frahm (eds.), The Statute of the International Court of Justice. A Commentary (Oxford: Oxford University Press, 2006), Art. 59 MN 36-40. p. 1243). The passage in the operative part resulted from the respective applicant’s demand for a (binding) assurance of non-repetition from the United States, to which the applicants were entitled, and which the Court directly gave them in the form of the above-quoted passage. The Court, unexceptionally, did for the applicants what the US would otherwise have been bound to do themselves.

I acknowledge, incidentally, that my claim that Sanchez-Llamas therefore violated Article 94 of the Charter was wrong, because Mr Sanchez-Llamas was not affected by the critical procedural default issue, and Mr Bustillo was not a Mexican citizen. Apart from this error of fact, however, I stand by my analysis.

It would follow that Medellin has violated Article 94, quite apart from whether Mr Medellin’s case was directly considered by the ICJ in Avena or not (which it was).

The distinction between the 50-odd Avena cases and other Vienna Convention-cases (of Mexican or German citizens) does not hold water.

In order to enforce an ICJ Judgement, however, you have to go through the Security Council … and good luck with that. I would say unless the Council acts, you don’t really have anything to enforce.

11.22.2006
at 9:32 pm EST Anon

“…Article 94 is the “supreme Law of the Land,” and “judges in every state shall be bound thereby.” Therefore, the Texas Court of Criminal Appeals has a constitutional duty to comply with the ICJ decision in Avena. Note that it is immaterial, for purposes of this argument, whether the Avena judgment is supreme federal law.”

Unless I’m missing something, this argument flies in the face of the holding of Sanchez-Llamas regarding the legal weight owed to ICJ decisions. In Sanchez-Llamas, the Supreme Court found that Article III of the U.S. Constitution vests the judicial power of the United States to U.S. courts. While ICJ decisions are deserving of “respectful consideration” (whatever that means), they are not authoritative or binding as a matter of U.S. law.

11.24.2006
at 10:37 pm EST Gene

Gene,

the holding of Sanchez-Llamas went to the weight of ICJ decisions as precedent, in the sense of stare decisis. The constitutional interpretation you mention led the Supreme Court to decide, correctly, that it was not in that sense bound to follow ICJ decisions on the law.

This must be distinguished from the territory covered by Article 94 of the Charter. This does not go to respect for the findings of the Court with regard to the governing law, but to the execution of the operative part of the judgment.

There is a clear difference between the execution of a judgment, and regarding the judgment as correctly or authoritatively stating the law: there is a duty to execute even judgments that have been wrongly decided, and such execution by the courts of a state party to an ICJ case does not imply approval of the ICJ’s reasoning.

The indiscrimnate use of the word ‘binding’ for ICJ decisions may therefore be slightly unfortunate. They are not binding authority, but their orders are very much binding on the US. Sanchez-Llamas is quite irrelevant to the latter notion of binding force (see the second to last paragraph of my comment above).

Thanks for elaborating, I now understand the point you’re making. For a variety of reasons, I highly doubt that a U.S. court would enforce an ICJ judgment requiring the suspension of procedural bars in certain circumstances, especially after the Supreme Court has concluded that the legal basis for the ICJ’s judgment was erroneous. Still, you’ve convinced me that the argument should have been made by the petitioners.

11.27.2006
at 9:18 am EST Gene

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